A separação dos poderes e o Poder Judiciário: uma análise da atuação do Supremo Tribunal Federal à luz do sistema de freios e contrapesos

Abstract

The purpose of this study is to analyze the principle of the separation of powers in the Brazilian Democratic State of Law, addressing the importance of the system of checks and balances, with an emphasis on the actions of the Federal Supreme Court. In addition, the research begins with the theoretical and historical definition of the principle of separation of powers, addressing its evolution in Brazilian constitutions until its classification as a permanent clause in the 1988 Constitution. After this, this study examines the system of checks and balances as a mechanism for control and balance between the Executive, Legislative and Judiciary powers, highlighting the importance of institutional cooperation and mutual controls for the maintenance of democracy, and determines that it is derived from the principle of separation of powers. In addition, the role of the Judiciary in the current scenario is discussed, especially its transformation from a power that merely applies the law to an active agent in the realization of fundamental rights, including through normative and additive rulings. The practical case examined - the judgment of Injunction No. 4733, which dealt with the criminalization of homotransphobia - serves as a clear example of the STF's corrective and guaranteeing action in the face of legislative omission, highlighting the challenges and limits of judicial activism. The conclusion, therefore, is that in order to guarantee the effectiveness of constitutional values, it is essential to recognize the legitimacy of active, albeit moderate, action by the judiciary, as long as it is aimed at protecting fundamental rights and preserving constitutional order